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Latest guidance on acting as an expert – part 1

Over the years, I have written about various guidance aimed at those working to resolve disputes. This includes RICS’ guidance on how to deal with conflicts of interest and how to be an adjudicator. Two more pieces of guidance have recently been published.

Surveyors acting as expert witnesses is available to RICS members to download from the RICS website and to non-members to buy from www.ricsbooks.com. It has a foreword from Lord Neuberger of Abbotsbury and includes sample terms of engagement (in appendix A), as well as an explanation (in appendix B) of an expert’s duty of care following Jones v Kaney, which removed an expert’s general immunity from being sued (changes are also made to GN21 to reflect this lack of immunity).

It is made up of a practice statement (PS) and a guidance note (GN). It is mandatory for RICS members to comply with the PS and there may be disciplinary consequences for not doing so. The recommendations in the GN represent “best practice”, although it is not mandatory for RICS’ members to follow them.

In the foreword, Lord Neuberger observes that in many cases expert evidence is crucial to the outcome and that it is crucial for the expert witnesses to be:

“…honest, objective and fair, so that their expertise can properly and helpfully inform, support and enhance the decision maker’s decision and the process by which that decision is reached.”

He goes on to say the guidance:

“…is the product of a great deal of detailed and extensive work… which provides helpful assistance, cutting edge advice and clearly defined standards for RICS members who act as an expert witness.”

He concludes by suggesting that following the guidance will enhance an expert’s credibility and promote confidence in the use of chartered surveyors as experts which, in turn, will promote best practice.

High words of praise indeed, but just what does the guidance say?

Principal message

The PS’ principal message is that an expert witness’ primary duty is to the tribunal where the report and evidence is being given. (“Tribunal” includes arbitration, adjudication and court proceedings, as well as a number of other tribunals, like the lands tribunal.)

The expert’s report and evidence:

“ must be, and must be seen to be, [the expert’s] independent and unbiased product, and fall within [the expert’s] expertise, experience and knowledge;

 must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to [the expert’s] conclusions; and

 must be impartial and uninfluenced by those instructing or paying you to give the evidence.”

Further, an expert must not “stray from the duties of an expert witness” and act in a partial, misleading or untruthful manner.

The principal message is unchanged from the third edition (which came into effect in January 2009), and sums up the key duties with which experts must comply. A quick glance at the contents list suggests that not much else has changed. However, looks can be deceiving and the devil is in the detail.

Practice statement: the details

Some of the key points and differences include:

The section on the application of the PS remains the same from the third edition. The evidence an expert gives to a tribunal, drawing upon his “professional experience, knowledge and expertise” is distinct from other evidence that an expert may give, such as evidence of fact or advocacy of a case (PS1.3).

The expert’s duties are largely the same and the expert must take “special care” to ensure his evidence is not biased towards the party instructing or paying him (PS2.1). Note also that an expert “must not malign the professional competence of another expert witness (PS2.7).

Acting as an expert (PS3) is also largely unchanged, although it does now expressly state an expert’s appointment cannot take the form of a conditional or success-based arrangement (PS3.6). This reflects changes that were introduced as part of the Jackson reforms. Similar amendments are made in GN19.

The section on reports and oral evidence (PS5) has undergone an overhaul, with additional paragraphs reminding an expert to maintain “professional objectivity and impartiality at all times” (PS5.2) and to provide “objective, unbiased opinions” (PS5.3). New wording is also included in the expert’s declaration (PS5.4) to reflect CPR 35.

It is one thing for the expert to change his mind, quite another for those instructing him to ask him to change his report. This is dealt with in PS6, with an expanded section highlighting that it is OK for an expert to change his mind after a meeting of experts or the disclosure of new evidence, but not for other reasons (unless the changes “accord” with the expert’s true opinion).

The role of the single joint expert (PS8) and the section on advocacy (PS9) have been expanded, but the emphasis in PS9 remains on the distinction between acting as a surveyor-advocate and as an expert, and the issues that arise if the surveyor accepts a dual role.

A new section on conditional fees has been added (PS10), which confirms an expert witness appointment should not take the form of a conditional or success-based arrangement (although it may be permissible when acting in a dual role (PS10.3)).

Guidance note: the details

With regard to the GN:

The section on the application of the GN has been overhauled since the third edition. The GN should be read in conjunction with the PS, providing direction on “good practice” when an expert is required to give expert evidence before a tribunal. The expert should also comply with any specific rules a tribunal may have (GN1.3). It still emphasises the need for impartiality (GN1.7) and continues to refer to the Ikarian Reefer, although reference to a number of other judgments has gone.

The general duties of an expert have been expanded to include acting independently and impartially, to assist the tribunal and to provide a range of opinions, as appropriate (GN2.1).

GN3 continues to emphasise the distinction between acting as an advisor and acting as an expert, particularly in relation to the potential for disclosure of any initial advice.

If an expert cannot fulfill the duties set out in PS2, he should decline the appointment (GN4.1). GN4.2 now refers to resigning as an expert, if these issues arises after appointment.

The section on instructions and inspections has also been overhauled (GN5), but the emphasis remains on conflicts of interest and how to deal with them.

Although the purpose of expert evidence no longer has its own section (it was GN6 in the third edition), I’m sure the message about assisting the tribunal is incorporated else where.

The section on factual evidence is largely the same (GN6), but opinion evidence (GN7) has been expanded and starts with a helpful reminder of what expert evidence is (opinion based on experience and knowledge).

GN8 and 9 deal with written questions and documents. Some changes here too, but the overall messages remain the same.

More detail is provided on what is expected of an expert when it comes to giving oral evidence (GN 10), not only in terms of preparation but also what form oral evidence takes and how to deal with questions and adjournments.

Connected to giving evidence is assisting advocates, both before and during any hearing. GN11 provides details of what an expert should expect to do in this regard.

There are now two sections on written reports. GN12 addresses the purpose of the report; details of how to set out the report are in GN13. It is worth noting that there are several references in GN12 to the mandatory requirements set out in PS5. Interestingly, it is suggested that if the expert has more than one opinion (because the issues lead to a range of opinions), the expert should articulate these and explain the reasoning behind them (GN13.4(c)).

The without prejudice meeting of experts prior to a hearing is an integral part of most litigation and aims to narrow the issues, allowing a tribunal to focus on only those issues that are in dispute. Consequently, the guidance on the meetings of experts (GN14) and narrowing issues (GN15) has been enhanced. It now includes guidance on what to do before, during and after the meeting, including preparing the document reflecting any agreement reached.

Conditional fee arrangements are prohibited and GN 19 has been amended to reflect this. Other issues related to fees are dealt with in GN18 and GN20. One change is to the need to provide an estimate at the outset. The guidance suggests this should only be provided when the expert has a good understanding of the case and the scope of his appointment (GN18.3). However, it is worth noting that the courts’ cost budgeting rules require the parties to exchange budgets prior to the first CMC, which may be much earlier in the process than the expert is comfortable with.

To summarise

The changes seek to reinforce the duties an expert owes to the tribunal, as identified by Lord Neuberger and in the PS’ principal message.

My message to all experts (and not just surveyors) is:

Follow the requirements of both the PS and GN and you shouldn’t get into the type of bother that some experts have got themselves into.

My message to those instructing experts is:

Make certain that your expert has complied with the PS and GN, and consider making express reference to this in your instructions. While you might be happy that an expert supports your client’s case wholeheartedly, there’s little point if a tribunal subsequently finds that his or her views are somewhat leftfield.